2008 edition - Fort Sam Houston - U.S. Army

Cotten, 10 M.J. 260 (C.M.A. 1981); United States v. Salley, 9
M.J. 189 (C.M.A. 1980). See also Holland v. United States, 348
U.S. 121, 140-41 (1954); United States v. Previte, 648 F.2d 73
(1st Cir. 1981); United States v. De Vincent, 632 F.2d 147 (1st
Cir.), cert denied, 449 U.S. 986 (1980); United States v. Cortez,
521 F.2d 1 (5th Cir. 1975); United States v. Zeigler, 14 M.J. 860
( A . C . M . R . 1 9 8 2 ) ; U n i t e d S t a t e s v . S a u e r , 1 1 M . J . 8 7 2
(N.C.M.R.), pet. granted, 12 M.J. 320 (1981); United States v.
Crumb, 10 M.J. 520 (A.C.M.R. 1980); E. Devitt and C. Blackmar,
Federal Jury Practice Instructions, § 11.14 (3d. ed. 1977).
As to instructions concerning accomplice testimony, see United
States v. Lee, 6 M.J. 96 (C.M.A. 1978); United States v. Moore, 8
M.J. 738 (A.F.C.M.R. 1980), aff’d, 10 M.J. 405 (C.M.A. 1981)
(regarding corroboration).
Rule 919 Argument by counsel on findings
(a) In general. This subsection is based on Fed. R. Crim. P. 29.1.
It has been reworded slightly to make clear that trial counsel may
waive the opening and the closing argument. The rule is consistent
with the first sentence of paragraph 72 a of MCM, 1969
(Rev.).
(b) Contents. This subsection is based on the first sentence of the
second paragraph of paragraph 72 b of MCM, 1969 (Rev.). The
discussion is based on paragraphs 72 a and b of MCM, 1969
(Rev.). See also paragraphs 44 g and 48 c of MCM, 1969 (Rev.);
Griffin v. California, 380 U.S. 609 (1965) (comment on accused’s
failure to testify); United States v. Saint John, 23 U.S.C.M.A. 20,
48 C.M.R. 312 (1974) (comment on unrebutted nature of prosecution
evidence); United States v. Horn, 9 M.J. 429 (C.M.A. 1980)
(repeated use of “I think” improper but not prejudicial); United
States v. Knickerbocker, 2 M.J. 128 (C.M.A. 1977) (personal
opinion of counsel); United States v. Shamberger, 1 M.J. 377
(C.M.A. 1976) (inflammatory argument); United States v. Nelson,
1 M.J. 235 (C.M.A. 1975) (comment on Article 32 testimony of
a c c u s e d p e r m i t t e d ; i n f l a m m a t o r y a r g u m e n t ; m i s l e a d i n g a r g u -
ment); United States v. Reiner, 15 M.J. 38 (C.M.A. 1983); United
States v. Fields, 15 M.J. 34 (C.M.A. 1983); United States v.
Fitzpatrick, 14 M.J. 394 (C.M.A. 1983) (bringing to members’
attention that accused had opportunity to hear the evidence at the
Article 32 hearing is permissible); United States v. Boberg, 17
U.S.C.M.A. 401, 38 C.M.R. 199 (1968); United States v. Cook,
11 U.S.C.M.A. 99, 28 C.M.R. 323 (1959) (comment on community
relations); United States v. McCauley, 9 U.S.C.M.A. 65, 25
C.M.R. 327 (1958) (citation of authority to members). See generally
ABA Standards, The Prosecution Function § 3-5.8 (1979),
The Defense Function § 4-7.8 (1979). See also United States v.
Clifton, 15 M.J. 26 (C.M.A. 1983).
(c) Waiver of objection to improper argument. This subsection is
based on Fed. R. Crim. P. 29.1 and is generally consistent with
c u r r e n t p r a c t i c e . S e e U n i t e d S t a t e s v . G r a n d y , 1 1 M . J . 2 7 0
(C.M.A. 1981). See also United States v. Doctor, 7 U.S.C.M.A.
126, 21 C.M.R. 252 (1956). But see United States v. Knickerbocker,
United States v. Shamberger, and United States v. Nelson all
supra; United States v. Ryan, 21 U.S.C.M.A. 9, 44 C.M.R. 63
(1971); United States v. Wood, 18 U.S.C.M.A. 291, 40 C.M.R. 3
(1969) (military judge had duty to act on improper argument sua
sponte where error was plain). As to the discussion, see United
States v. Knickerbocker, and United States v. Nelson, both supra;
U n i t e d S t a t e s v . O ’ N e a l , 1 6 U . S . C . M . A . 3 3 , 3 6 C . M . R . 1 8 9
ANALYSIS
App. 21, R.C.M. 920(d)
( 1 9 6 6 ) ; U n i t e d S t a t e s v . C a r p e n t e r , 1 1 U . S . C . M . A . 4 1 8 , 2 9
C.M.R. 234 (1960).
Rule 920 Instructions on findings
(a) In general. This subsection is based on the first sentence of
paragraph 73 a of MCM, 1969 (Rev.). The discussion is based on
the first paragraph of paragraph 73 a of MCM, 1969 (Rev.). See
United States v. Buchana, 19 U.S.C.M.A. 394, 41 C.M.R. 394
(1970); United States v. Harrison, 19 U.S.C.M.A. 179, 41 C.M.R.
179 (1970); United States v. Moore, 16 U.S.C.M.A. 375, 36
C.M.R. 531 (1966); United States v. Smith, 13 U.S.C.M.A. 471,
33 C.M.R. 3(1963). See also United States v. Gere, 662 F.2d
1291 (9th Cir. 1981).
(b) When given. This subsection is based on the first sentence of
paragraph 73 a and on paragraph 74 e of MCM, 1969 (Rev.), and
is consistent with Fed. R. Crim. P. 30. This subsection expressly
provides that additional instructions may be given after deliberations
have begun without a request from the members. MCM,
1969 (Rev.) was silent on this point. The discussion is based on
United States v. Ricketts, 1 M.J. 78 (C.M.A. 1975).
1993 Amendment: The amendment to R.C.M. 920(b) is based
on the 1987 amendments to Federal Rule of Criminal Procedure
30. Federal Rule of Criminal Procedure 30 was amended to permit
instructions either before or after arguments by counsel. The
previous version of R.C.M. 920 was based on the now superseded
version of the federal rule.
The purpose of this amendment is to give the court discretion
to instruct the members before or after closing arguments or at
both times. The amendment will permit courts to continue instructing
the members after arguments as Rule 30 and R.C.M.
920(b) had previously required. It will also permit courts to instruct
before arguments in order to give the parties an opportunity
to argue to the jury in light of the exact language used by the
court. See United States v. Slubowski, 7 M.J. 461 (C.M.A 1979);
United States v. Pendry, 29 M.J. 694 (A.C.M.R. 1989).
(c) Requests for instructions. This subsection is based on the first
three sentences in Fed. R. Crim. P. 30 and on the second and
fourth sentences of paragraph 73 d of MCM, 1969 (Rev.). The
discussion is based on the remainder of paragraph 73 d.
(d) How given. The first sentence of this subsection is based on
the last paragraph of paragraph 73 a of MCM, 1969 (Rev.). The
second sentence of this subsection permits the use of written
copies of instructions without stating a preference for or against
them. See United States v. Slubowski, 7 M.J. 461 (C.M.A. 1979);
United States v. Muir, 20 U.S.C.M.A. 188, 43 C.M.R. 28 (1970);
United States v. Sampson, 7 M.J. 513 (A.C.M.R. 1979); United
States v. Sanders, 30 C.M.R. 521 (A.C.M.R. 1961). Only copies
of instructions given orally may be provided, and delivery of only
a portion of the oral instructions to the members in writing is
prohibited when a party objects. This should eliminate the potential
problems associated with written instructions. See United
S t a t e s v . S l u b o w s k i , s u p r a ; U n i t e d S t a t e s v . C a l d w e l l , 1 1
U.S.C.M.A. 257, 29 C.M.R. 73 (1960); United States v. Helm, 21
C.M.R. 357 (A.B.R. 1956). Giving written instructions is never
required. The discussion is based on the last paragraph of paragraph
73 a of MCM, 1969 (Rev.) and United States v. Caldwell,
supra. As to the use of written instructions in federal district
courts, see generally United States v. Read, 658 F.2d 1225 (7th
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